INSIGHT: Permanent site security law may slide to 2011

04 February 2010 16:48[Source: ICIS news]

By Joe Kamalick

WASHINGTON (?xml:namespace>ICIS news)--There is a growing possibility that the US Senate will fail to pass a new chemical facility anti-terrorism security bill this year, leaving a permanent legislative fix to the next and perhaps more business friendly Congress in 2011.

This was first raised this week by President Barack Obama himself, when his fiscal year (FY) 2011 budget proposal suggested that the existing site security regulations - known as the Chemical Facility Anti-Terrorism Standards (CFATS) - might have to be extended for another year.

The original CFATS was authorised in 2006 by the then Republican majority Congress as part of the FY2007 Department of Homeland Security (DHS) appropriations bill.

To gain support for the measure among Democrats - who wanted a tougher law and a future opportunity to seek more stringent requirements - Republicans agreed to a three-year sunset provision, meaning that CFATS would lapse in late 2009 unless renewed or extended by Congress.

Near the end of last year Congress approved a one-year extension of the existing CFATS provisions to October 2010, on the assumption that the Senate would find time in the first nine months of this year to pass its own site security legislation and then find common ground with the House-passed bill.

But in President Obama’s proposed budget for FY2011, delivered to Congress on Monday, the section on DHS spending includes language that extends the existing CFATS requirements to October 2011.

That provision can be viewed as simply a place-holder, a bit of insurance to be sure that the law is sustained for another year if indeed the Senate cannot act this year.

But it also may be a nod to the fact that this is an election year and Congress is facing a White House legislative wish-list that could well keep members of the House and Senate fully occupied until the August recess.

By August and even earlier, the electioneering and campaigning will crank up to full speed in anticipation of the 2 November vote.

“A straight-up extension of the existing CFATS programme is more likely to pass this year than a ‘Son of CFATS’ bill reaching the president’s desk,” said Bill Allmond, vice president for government relations at the Society of Chemical Manufacturers and Affiliates (SOCMA).

In referring to a “Son of CFATS” bill, Allmond was talking about the more aggressive site security legislation approved by the House last year.

That bill included a robust inherently safer technology (IST) mandate that essentially would give the department authority to shut down a production facility whose owners declined to make changes in feedstocks, processes or end products dictated by regulators.

It also contained a modified private right of action (PRA) provision, which would allow citizens to file suit against the department in an attempt to force regulatory action against a specific plant site.

In the original House bill, the private right of action provision also would have allowed citizen suits against individual production facilities.

Allmond expects that those two senators will introduce their bills in the next few months to toughen chemical site security requirements, “and there will be plenty of debate”.

“However,” Allmond added, “the president’s budget request extending CFATS for one year does give Congress an ‘out’ if they need to give it a pass.”

He noted too that in his state of the union address earlier this month, Obama gave more emphasis to issues other than homeland security.

“Security remains a priority for Congress,” Allmond said, “but the fervor for a sweeping new chemical security law is taking a back seat to the budget, financial reform and jobs creation.”

In addition, the president has made clear that after Congress completes work on some sort of new jobs stimulus package - itself not an easy or quickly done task - he wants the legislature to return to his high-priority health insurance reform legislation.

That health insurance item on its own consumed the better part of last year’s deliberations in Congress.

We’re already in February, with barely six months left before Congress will take its annual recess for all of August - and when election fever will effectively shut down congressional consideration of anything the least bit controversial.

“Prospects for Senate passage of a permanent CFATS bill this year look less and less likely,” Allmond said.

For Jennifer Gibson, vice president for government affairs at the National Association of Chemical Distributors (NACD), the White House budget provision for a one-year extension of the existing CFATS “is certainly a positive development”.

“It indicates that the president recognizes that although the House has passed chemical security legislation, it could still be difficult for a bill to get through the Senate before the current expiration date of October 2010,” she said.

If the Senate cannot get its act together and pass its version of a new site security bill (and work out a compromise bill with the House) by summer, odds are that the whole issue will be bumped on to the next Congress.

And the 112th Congress that will convene in January 2011 might well be substantially different as a result of November's elections.

The highly respected Cook Political Report suggests that as many as 24 House seats now held by Democrats are at risk of falling to Republican challengers.

Similarly in the Senate, between retirements and vulnerable seats, Cook sees as many as five to seven Democrat chairs possibly shifting to Republican control.

Those election outcomes could whittle the Democrat majority in the House down to 233 seats from its current 257, leaving Democrats with a much narrower 31-seat margin over their Republican colleagues compared with the current 79-seat edge.

In the Senate, Democrats have already lost their 60-vote super majority, courtesy of the upset win by Republican Scott Brown in the Massachusetts contest to fill the Senate chair previously held by the late Democrat and liberal stalwart Ted Kennedy.

If the Democrats lose as many as five Senate seats in November, their majority shrinks from its current 57 (or 59 if you count the Senate’s two independents among the Democrats) to as little as 52 seats, with two independents and 46 Republicans.

That could make for a more business friendly Congress, although not a certainty.

NACD President Chris Jahn said he is “optimistic that the 112th Congress in 2011 will be more pro-business and more pro-job creation.”

“The fact remains that CFATS is in place and by most accounts is moving forward as intended,” he said, adding that his group will lobby for the additional one-year extension of the current law.“Let’s give it a chance to work.”

Scott Jensen, a spokesman for the American Chemistry Council (ACC), said he was glad to see the White House budget’s extension for CFATS because it will allow the existing system to move forward beyond this year.

He noted, however, that the council would much prefer that Congress and the White House simply make the existing regulations permanent - settling the issue, providing protection to plant sites from terrorist attack and giving industry some certainty.